CWC Implementation Country Studies -Romania

DAN ILIESCU AND PATRICIA RADLER


Introduction

Romania participated actively in the CWC negotiation process and signedthe Chemical
Weapons Convention (CWC) 13 January 1993 and ratified it 15. February 1995.(2 )

In the period between the signature and the ratification, an intense andcomplex
programme was carried out, aimed to prepare the internal conditions forimplementing
the CWC. The activities regarding the implementation of the CWC into aninternal
framework (both administrative and legal) were influenced by some specificinternal
particularities of Romania.

Romania has an economy in transition towards an open market economy, still
featuring wide state ownership (especially in the industrial sector, chemicalindustry
included). Romania possesses no CW and does not produce any. Romanian legal
doctrine provides that international treaties, once ratified by the Parliament,become part
of the national legislation.

The Romanian overall concept for the national implementation of the CWCis towards
a single act. The solution is considered to be more adequate by offeringa uniform, easy
to apply regime.

Efforts were undertaken to accomplish as much as possible of the requiredinternal
legislative and administrative framework until the moment of ratificationof the CWC by
the Parliament. This task was carried out by an inter- ministerial workinggroup
involving, inter alia, the Ministry of Foreign Affairs, Ministry of Defence,Ministry of
Industries, Ministry of Finance - Directorate General of Customs, Ministryof Internal
Affairs, Ministry of Environmental Protection and the National Agency forExport
Control.

For accelerating the accomplishment of a reliable national implementationand
application framework, the working group took advantage of the already existinglegal
and administrative structures of export controls (3) especially in establishingthe National
Authority.

The main achievements of the working group were the preparation of the internal
forms for ratifying the CWC and the establishing of the National Authorityas a distinct
division at the National Agency for Export Control. The name is modifiedto the
National Agency for the Control of Strategic Exports and of the Prohibitionof
Chemical Weapons (the Agency).

The Romanian National Authority was established in May 1994 and one of itsmajor
tasks has been to prepare the internal implementation act of the CWC. Theresult is the
Draft- Law proposal on the Prohibition of Developing, Producing, Stockpilingand Use
of Chemical Weapons, at time under consideration of the Parliament of Romania(Draft-Act).


Main Provisions

General aspects

The implementation of the CWC is towards a single act solution in the beliefthat a
uniform and precise legal framework will offer the most adequate conditionsfor
organising and surveying CWC related issues.

The full title of the Draft- Act is 'Draft Law on the Implementation ofthe Provisions
of the Convention on the Prohibition of Developing, Producing, Stockpilingand Use
of Chemical Weapons and their destruction'. In its present form the Actcontains of 9
chapters summing 59 articles, and three Annexes. (4 )Data on some main characteristicsof
the Act such as language, field of application, object are found in chapterI, General
Dispositions, which provides for:

(1) definitions of terms used in the text (chemical weapon, precursor, toxicchemical, riot-control
agents) - Article 1;
(2) the presentation of the three schedules of toxic chemicals and precursors- Article 2;
(3) the main object of the Act which is the prohibition, for any person,under any
circumstances, to develop; produce; acquire in any way; stockpile; transfer,directly or
indirectly; engage in military preparation for the use of chemical weapons;assist,
encourage or determine anyone to engage in activities prohibited by theConvention; use
riot- control agents as means of warfare- Article 3;

For ensuring these main objectives, a list of prohibitions (and the corresponding
penal sanctions) is given in chapter VIII, Sanctions.

Under chapter III, Unprohibited Activities, precise licensing and permitting
requirements and proceedings are provided for.

According to the provisions of chapter IX, Final Dispositions, the Act willenter into
force 90 days before the EIF of the CWC. The Agency has to elaborate andimplement
application instructions for the purposes of this Act, e. g., include modelforms for
declarations and details on the national and international inspections.The instructions
are to be approved by the Government

The National Authority

Article 4 of chapter I designates the National Agency for the Control ofStrategic
Exports and of the Prohibition of Chemical Weapons (further called the Agency),as
being the specialised governmental body which applies the control regimeregarding the
production, use, import and export of toxic chemicals and their precursorsfor activities
not prohibited under the CWC. The Agency represents Romania as the National
Authority in the relations with the OPCW, and with the National Authoritiesof other
States Parties. The structure, attributions and logistics of the Agencyare settled by a
Governmental Decision. (5 )

The task and powers of the National Authority are: (a) the issuing of theinitial and
annual national declarations to be transmitted to the OPCW, (b) the issuingof permits
for the Schedule 1 facility, (c) systematic verification of chemicals andproduction
facilities, through declarations of the operators and on- site routine inspections,(d)
authorising the issue of import or export licences for scheduled chemicals,and
notification of the Schedule 1 chemicals transfers to the OPCW, (e) collectionof
information for the annual national declarations, and the national database, (f)
organising the conditions for the international compliance inspections,(g) international
co- operation for CWC related issues, and (h) informing the Government onCWC
implementation issues.

The National Authority was established by a Governmental Decision, (6) asa distinct
administrative body (Directorate- General) within the National Agency forthe Control of
Strategic Exports and of the Prohibition of Chemical Weapons. It is an independent,
formal body in the apparatus of the Prime Minister.

The Agency is headed by a Chairman with the ranking of a Secretary of State.The
Directorate- General for the Control of the Prohibition of Chemical Weaponsis headed
by a Director- General. (7)

According to Chapter III, Unprohibited Activities, the Agency shall authorisethe
production of Schedule 1 chemials for research and medical, pharmaceuticaland
protective purposes and the production facilities, including the singlesmale scale
facility. In order to prevent the use of any Schedule 1 chemicals for terroristactivities,
the law sets no lower limits for the authorisation of their production,and no thresholds
for Schedule 1 delarations.

The last article in chapter III provides for that the production of Schedule2 and 3
toxic chemicals and precursors is a permitted activity, subject to the controlof the
Agency and to international verification, and according to the dispositionof the law.

Collection of information

The Agency is responsible for the collection of information and data onCWC related
issues. The main goal of this activities is the issuing of the initial andannual national
declarations which are to be transmitted to the OPCW.

The chapter II, Declarations, includes 9 articles covering all types ofdeclarations
provided by the Convention and it contains provisions on the obligationsof the facility
operators, public or private, regarding initial and annual declarationsto be submitted to
the National Authority, as a basis for the national declarations.

The time frames for the submission of the declarations are settled in away which
leaves to the Agency a 30 day period to process, finish and transmit thenational
declarations to the OPCW, on time.

The internal declaration thresholds of Schedule 2 and 3 chemicals are reducedto one
half and 2/ 3 respectively of those provided by the CWC for enabling theAgency to
keep a precise evidence of the operators likely to figure in the nationaldeclarations.


Verification - Inspections

General remarks

The Romanian view on verification inspections is presented in chapters Vand VI,
The Control System and International Verification, of the Draft- Act.

Facility Agreements

The Romanian draft- legislation provides for the conclusion of FacilityAgreements.
According to chapter VI of the Draft Act the proceedings for on- site international
compliance inspections to Schedule 1 and 2 facilities are to be settledin details by
Facility Agreements concluded between the Agency and the OPCW.

Systematic inspections

Chapter V, The Control System, provides for that the Agency for exercisingits control
attributions, sets up its own control body (CB), including own experts andoutside
specialists. CB staff will be attested by the Agency; for the purpose ofconducting
chemical analysis required by the inspection activities, the Agency designatesand
authorises specialised labs. The CB has unrestricted access to locations,installations,
documentation and information, requested for the successful fulfilment ofcontrol duties
during the inspection, national or international.

The operator is required to: (a) inform the inspection team on the maincharacteristics of the plant site and facility, its main activities, theadministrative, logistic and security measures necessary for the inspection;(b) operate the controlled facility at the request of the inspection team;
c) provide the inspection team with relevant documentation, at request;(d) allow the
inspection team to interrogate the installation personnel, for the settlementof facts
relevant for the purposes of the inspection; (e) ensure protective equipment,if
necessary, and to permit the inspection team to use its own equipment, ifthis
corresponds with the specifics of the facility; (f) ensure the installationand functioning
of the permanent surveying equipment; (g) take appropriate measures forthe circulation
of information revelled during the inspection, for the protection of confidential
information; (h) permit the inspection team to take samples, to analysethem and to
transfer them for further analysis, to designated national laboratories,or to the OPCW;
and (i) participate at the presentation, by the inspection team, of thepreliminary results
of the inspection and clarify unclear issues, if any.

The Agency ensures the compliance with the provisions of this Act, by surveyingthe
production, consumption and import/ export for scheduled chemicals, andalso
continuously surveying equipment installed at relevant facilities, initialand routine
inspections at the premises suitable for the purposes of this Act.

The last 4 articles of the chapter provide the purpose and objectives ofthe inspection
activities of the Agency at facilities producing Schedule 1, 2 and 3 chemicals,and at
facilities declared under Part IX of the Verification Annex of the CWC.

International inspections

Chapter VI, International Verification, contains provisions aimed to ensurethe
successful carrying out of verification activities by OPCW inspection teams.
The on- site inspection proceedings for Schedule 1 and 2 chemicals installations,are
to be settled in details, by Facility Agreements concluded between the Agencyand the
OPCW.

The internal escort for the OPCW inspectoion teams will be ensured by ateam
selected from the Agency's Control Body.

It is also provided for obligations of the operator of an inspected facilityduring an
international inspection. The operators have to: (a) ensure the means andservices
requested by the work of the inspection team (transport, communication withthe
OPCW, translation, working spaces, lodgement, medical assistance), (b) ensurethe
protection of confidential information and data, which are not related tothe objectives
of the inspection; (c) provide the inspection team with maps and plans indicating,at the
proper scale, the premises relevant for the purposes of the inspection;and (d) permit the
application of the traffic control proceedings, by keeping entrance- exitto the premises
registers, as well as by the use of video recording means and sensors bythe inspection
team.

The chapter also gives the obligations of different public institutionswith regard to
international inspections under the CWC.

The Agency, together with the Ministry of Interior Affairs (Directorate-General for
Passports and Border Police) and the Ministry of Finance (Directorate- Generalof
Customs), settles the point of entry for the inspection teams and transmitsthe
information to the OPCW. The Ministry of Foreign Affairs transmits the informationon
the arrival time of the unscheduled aircraft of the inspection team to theMinistry of
Transport (Air Transport Department). It obtains the unscheduled flightdiplomatic
authorisation, ensures the ground services for the aircraft and builds upthe escort team
from the CB staff members. The escort team ensures the compliance with the
obligations and rights of the inspected party during the inspection.

The Ministry of Foreign Affairs grants the multiple entry- exit and transitvisas for the
members of the international inspection team, and ensures the inviolabilityof their
documents, equipment and samples.

The Ministry of Finance permits the tax- free entrance of the inspectionequipment and
personal goods of the inspection team members.

The Ministry of Transport issues a permanent number of diplomatic authorisations
for unscheduled flights of OPCW owned aircrafts to carry inspection personneland
equipment. It ensures the ground services for this aircraft and exemptsOPCW aircraft
from landing and take- off taxes or similar expenses. It approves the flightprogrammes
transmitted by the OPCW.

The Ministry of Communication authorises the inspection team to use OPCW
communication means for contacting the headquarters or between the membersof the
inspection team.

Privileges and immunities of international inspectors and team members
Privileges and immunities of the members of the international inspectionteam members
are detailed in the Annex 3 to the Law and are those provided by the Verification
Annex, Part II, Section B under the CWC and the Vienna Convention regardingthe
privileges and immunities of diplomatic personnel.

Export Control

Chapter IV, Import and Export Operations, deals with the transfer regimeof scheduled
chemicals in 4 articles. Schedule 1, 2 and 3 chemicals and their precursorsare regarded
as strategic products, in the acceptance of the export control legislation(Governmental
Decision no 31/ 1994, enacted by the Parliament as Law 93/ 1994). The applicationsfor
licensing of exports or imports of scheduled chemicals have to be approvedby the
Agency. The export/ import regime for Schedule 1 and 2 chemicals is theone provided
by the CWC.

Protection of Confidentiality

Chapter VII, Other Dispositions, provides for the obligation of the Agencyto ensure
the protection of information considered to be confidential. The Agencyis entitled to
settle the confidential character of the declarations and other data transmittedto the
OPCW.

The Agency, together with the competent ministries, has to examine, thelist of
inspectors and inspection assistants, transmitted by the OPCW, and to communicatethe
results to the OPCW.

The access of Agency control personnel to inspection sites occurs on thebasis of
identity cards, issued and signed, by the Chairmen of the Agency. The accessof
international inspection teams occurs only in the presence of national escortteams, on
the basis of a verbal note issued by the Agency.

The Agency gives, at request, specialised consultancy to operators and other
interested persons, on the control regime of utilising scheduled toxic chemicalsfor
unprohibited activities, under the CWC.

Penal sanctions

Chapter VIII, Sanctions, provides the administrative (fines) and penal (imprisonment
and fines) sanctions for breaches of the provisions of this Act. The sanctionfor the use
of chemical weapons is to be punished with 15 to 25 yearsof imprisonment,which is
the maximum penalty provided in the Romanian Penal Code.

Conclusions

Romania is a country in economic transition. It chose to create one singleact (except for
Penal Code and some export regulations) to implement the CWC. The Act entersinto
force 60 days before the entering into force of the CWC. Incorporation ofinternational
treaties to national law is made through ratification of the treaty.

The National Authority, the National Agency for the Control of StrategicExports and
of the Prohibition of Chemical Weapons, is already established. Its maintask up to date
has been to prepare implementation legislation. As concerns the tasks ofthe Agency its
power is very centralised. The Agency applies the control regime as regards
production, use, import and export of toxic chemicals and their precursors.Export and
import licenses are approved by the Agency. It is also responsible to ensurethat
protection of CBI and to establish a data base under Article X of the CWC.

National inspections are provided for. The Agency sets up its own controlbody
which has have unrestricted access to locations, installations, documentationand
information for the successful fulfilment of the national verification regime.

The Act provides for international inspections and the conclusion of facility
agreements.




Footnotes

1 Acknowledgement: The version of draft the legislation used for this study(dated March 1995) is at the moment under consideration at the competentauthorities of Romania, and therefore likely to suffer from some modifications.At the moment the legislation contains an introduction, nine chapters summing58 articles, as well as two Annexes. Following the events in Tokyo the 20March this year, it is likely that more strict control and authorising measureswill be introduced in the text of the draft.

2 Romania became the 25th ratifier of the CWC.

3 National Agency for Export Control, later to become National Agency forthe Control of Strategic
Exports and the Prohibition of Chemical Weapons, Governmental Decisionsno. 594/ 1992, 31/ 1994 and 211/ 1994.

4 The titles of the chapters are:

Chapter I- General Dispositions Chapter II- Declarations
Chapter III - Unprohibited Activities Chapter IV - Transfers
Chapter V - Verification Chapter VII- Other Dispositions
Chapter VII- Sanctions Chapter IX - Final Dispositions
Annexes: Decision by the Government of Romania, No. 211/ 18 May, 1994, onsome measures for implementing the international convention on the Prohibitionof the Development, Destruction, Production,
Stockpiling and Use of Chemical Weapons and on their Destruction; and ThePrincipal Attributions of the Agency.

5 Decision No 211/ 94, 18 May 1994 and The Main Attributions of the Agency

6 Decision No. 211/ 94

7 For details see Annex 2.